Judge Ralph C. Hofer, Case Number: 22GDCV00379, Date: 2024-11-22 Tentative Ruling

Plaintiff Jean Kechichian alleges that plaintiff owns a parcel of residential property located at 945 Flanders Road in La Canada, and that defendant Linda K. Lee owns an adjacent parcel of property located immediately to the north of plaintiff’s property. Plaintiff alleges that a dilapidated wooden fence between the two properties has for the past several years become rotted, broken apart and overgrown with vines and shrubbery, and has most recently begun sliding down a small incline onto plaintiff’s property.

The complaint alleges that when plaintiff looked into replacing the fence, he discovered that it had slid down from its original placement on the property line by approximately ten feet. After having a survey completed, plaintiff approached defendant and her husband about having the fence re-built on the property boundary line. Defendant refused, and began planting vegetation and depositing construction debris on plaintiff’s property, and then began to verbally threaten and harass plaintiff, which caused plaintiff great distress and fear, as plaintiff is an elderly man.

Plaintiff alleges that when plaintiff decided to simply pay for the wall himself and hire contractors to construct it, defendant called the police, and that, rather than negotiating to work out a solution, defendant recently initiated construction of a new fence on plaintiff’s property.

The file shows that on July 7, 2022, the court, Judge Rosen presiding, heard an ex parte application for a temporary restraining order and OSC re preliminary injunction brought by plaintiff. The ex parte application was granted and the court signed an order restraining defendant and persons acting with defendant from erecting or taking any steps toward erecting a fence or wall along the boundary or within 20 feet of the boundary with plaintiff’s property, including digging holes, pouring concrete, setting poles or installing fencing, depositing construction related debris on the property line, or planting vegetation in the disputed area between the properties.

On August 5, 2022, the court heard the OSC re preliminary injunction. The application for preliminary injunction was granted, and plaintiff ordered to post bond with the court by August 19, 2022. It does not appear that any bond has been posted, so evidently the preliminary injunction has dissolved automatically, pursuant to the court’s August 5, 2022 order, which provided, “If no bond is posted on or before 4:00 p.m. on August 19, 2022, the injunction will dissolve automatically.”

On July 26, 2024, the court heard four discovery motions brought by defendant to compel responses to form and special interrogatories, set three, requests for production of documents, set three, and to have requests for admissions, set three, deemed admitted. The motions were granted, and plaintiff ordered to serve verified responses to the discovery, without objections, and to permit inspection and copying within ten days. The requests for admissions were deemed admitted as true. The court also awarded monetary sanctions in favor of defendant and against plaintiff in the sum of $987.50 plus $66.90 filing fees as to each of the four motions.

The file shows that on September 20, 2024, the court heard motions to be relieved as counsel filed by counsel for plaintiff. The motions were granted, and the court signed and filed the orders, which each stated, “Attorney is relieved as counsel of record for client effective upon the filing of the proof of service of this signed order upon the client.” On September 24, 2024, proof of service of the signed orders upon the client was filed. Counsel has accordingly been relieved as attorneys of record, and plaintiff is now representing herself.

Defendant Linda Lee seeks terminating, issue or evidentiary sanctions against plaintiff, arguing that plaintiff has failed to comply with this court’s order by failing to provide discovery responses by the time required under the court’s order of July 15, 2024.

Under CCP § 2031.300 (c), if a party “fails to obey” a court order compelling a response to a demand for documents, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010).”

Under section 2023.010, “misuse of the discovery process” includes “(g) Disobeying a court order to provide discovery.” Where there has been such conduct, under CCP section 2023.030 (d), the court may impose a terminating sanction by issuing an order “(1)...striking out the pleadings... of any party engaging in the misuse of the discovery process.” Where a court order has been disobeyed, the choice of sanction is within the court’s discretion and will only be set aside for abuse of discretion. Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 228.

In general, courts should grant lesser sanctions first before granting terminating sanctions. Deyo v. Kilbourne (1978) 84 Cal.App.3d 771. The Second District in Deyo set out factors which may be relevant in deciding whether to impose sanctions and which sanction to impose:

“In exercising this discretion, a variety of factors may be relevant, including, 1) the time which has elapsed since interrogatories were served, 2) whether the party served was previously given a voluntary extension of time, 3) the number of interrogatories propounded, 4) whether the unanswered questions sought information which was difficult to obtain, 5) whether the answers supplied were evasive and incomplete, 6) the number of questions which remain unanswered, 7) whether the questions which remain unanswered are material to a particular claim or defense, 8) whether the answering party has acted in good faith, and with reasonable diligence, 9) the existence of prior orders compelling discovery and the answering party's response thereto, 10) whether the party was unable to comply with the previous order of the court, 11) whether an order allowing more time to answer would enable the answering party to supply the necessary information, and, 12) whether a sanction short of dismissal or default would be appropriate to the dereliction.”

“The penalty should be appropriate to the dereliction and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. Where a motion to comp[el has previously been granted, the sanction should not operate in such a fashion as to put the prevailing party in a better position than he would have had if he had obtained the discovery sought and it had been completely favorable to his cause.”

The purpose of the Discovery Act is to facilitate discovery with the view toward conducting trial on the merits: “One of the principal purposes of the Discovery Act...is to enable a party to obtain evidence in the control of his adversary in order to further the efficient, economical disposition of cases according to right and justice on the merits.” Caryl Richards, Inc. v. Superior Court (1961, 2nd Dist.) 188 Cal.App.2d 300, 303, emphasis in the original. Accordingly, Caryl Richards is often quoted in sanctions opinions: “The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks but the court may not impose sanctions which are designed not to accomplish the objects of discovery but to impose punishment.” Caryl Richards,.at 304, citations omitted; see, e.g. Motown Records Corp. v. Superior Court (1984, 2nd Dist.) 155 Cal.App.3d 482, 489.

In this case, plaintiff has been ordered to provide responses to discovery, and has failed to timely do so. The discovery requests pertain to matters such as when plaintiff learned that the subject fence allegedly encroached on the subject property, and how the matters plaintiff complains of were discovered, as well as the documents and witnesses supporting those facts, which are clearly matters within plaintiff’s ready knowledge. The information pertains to this case, and should not be difficult for plaintiff to obtain.

The requests for admissions which have been deemed admitted include admissions that plaintiff has known about the fence and the property line and survey since 2013 but took no action until 2021, that plaintiff failed to give proper notice to defendant as required, and that plaintiff caused damage to defendant’s garden and property for which plaintiff is legally required to provide compensation. These so not appear dispositive of the entire case, so plaintiff is not in a position where the requests for admissions order would be the equivalent of terminating sanctions in any case.

This motion concerns only one round of discovery, served in April of 2024, and it does not appear from the file that plaintiff has been persistently violating discovery orders. There was an untimely opposition filed to the prior motions, which attached copies of responses to other sets of discovery, including the first, second and even the fourth sets of discovery, and it was not clear why plaintiff had not simply responded to the third sets of discovery as well. The trial date is set for March 24, 2025, so there is no current urgency with respect to obtaining the discovery.

Ordinarily in such circumstances, the motion would not be granted but the plaintiff is ordered one final time to provide the discovery, and to pay further monetary sanctions to reimburse defendant for the expense of bring the motion for terminating sanctions. This outcome appears appropriate here, particularly given that plaintiff may be in the process of retaining new counsel, or may not understand that the discovery disputes have not been fully resolved between the parties. The court issues such an order here.

CCP § 2030.290(c) provides that for failure to obey a court order compelling responses to interrogatories, “In lieu of or in addition to” an issue, evidence or terminating sanction, “the court may impose a monetary sanctions under Chapter 7 (commencing with Section 2023.010.” A similar provision applies to a failure to obey a court order compelling a response to document demands. CCP § 2031.300(c).

As noted above, CCP § 2023.010 defines misuse of the discovery process to include “(g) Disobeying a court order to provide discovery.” Where there has been a misuse of the discovery process, under CCP section 2023.030 (a) the court “may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.... If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

In this case, plaintiff has failed to obey a court order and defendant has provided evidence that it has been forced to incur expense due to this conduct. Further monetary sanctions will be awarded. The sanctions sought are $2,831.90. These amounts are reasonable and are awarded in full as requested.

Under CCP § 2030.290, “If a party to whom interrogatories are directed fails to serve a timely response,” that party “waives any legal right to exercise the option to produce writings...as well as any objection to the interrogatories, including one based on privilege or on the protection for work product...” Under subdivision (b), “The party propounding the interrogatories may move for an order compelling response to the interrogatories.” CCP §2031.300 contains similar provisions with respect to requests to produce documents.

Defendant argues that plaintiff has failed to respond to defendant’s fourth set of discovery. Defendant submits the discovery, showing it was served on May 1, 2024 by electronic service, and that no responses had been served by June 5, 2024, when the motions were filed. [Kim Decl., paras. 2, 4, Exs. A].

However, the file shows that in connection with the motions on the third set of discovery which is the subject of the motion for terminating sanctions, above, plaintiff submitted with the opposition papers copies of responses to this fourth set of discovery. The responses to the special interrogatories are dated June 27, 2024, and the responses to the form interrogatories and document requests are dated July 7, 2024. [See Plaintiff Jean Kechichian’s Memorandum of Points and Authorities in Opposition to Defendant Linda K. Lee’s Motions to Compel Responses to Form Interrogatories, Set Three, Special Interrogatories, Set Three, Requests for Production, Set Three, and Requests for Admissions, Set Three, filed 7/16/2024, Mabee Decl., paras. 17-19, Exs. 15-17]. This filing would have been after the motions to compel were filed on June 5, 2024, so it is possible that the motions have since become moot.

Moreover, the responses were not accompanied by verifications by defendant. [See Mabee Decl., Exs. 15-16]. CCP § 2030.250(a) provides that “The party to whom interrogatories are directed shall sign the response under oath unless the response contains only objections.” CCP § 2031.251(a) provides, “The party to whom the demand for inspection is directed shall sign the response under oath unless the response contains only objections.”

Where a verification of discovery is required, an unverified response is ineffective; it is the equivalent of no response at all. See Appleton v. Superior Court (1988) 206 Cal.App. 3d 632, 635-636 (“The responses were provided in this case but they were not verified. Unsworn responses are tantamount to no responses at all.”); see also Steven M. Garber & Associates v. Eskandarian (2007, 2nd Dist.) 150 Cal.App.4th 813, 817, n. 4.

Plaintiff’s responses included objections and substantive responses, so were required to be verified. They were evidently not verified, so were the legal equivalent of no responses at all, so that technically, no responses have been served. Accordingly, interrogatories and document production demands have been directed to plaintiff, and since plaintiff’s responses are considered no responses, plaintiff has failed to provide timely responses. Defendant has appropriately moved for an order to compel. Accordingly, plaintiff has waived the option to produce, as well as all objections, and is ordered to respond.

Under CCP § 2033.280, a party who fails to serve a timely response to requests for admissions “waives any objection to the requests….” In addition, the requesting party may move for an order that “the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction....” CCP § 2033.280(b). The Code specifies that “The court shall make this order, unless it finds that the party to whom the requests for admissions have been directed has served, before the hearing on the motion, a proposed response to the request for admissions that is in substantial compliance with Section 2033.220.” CCP § 2033.280(c).

In this case, requests for admissions were served on responding party on May 1, 2024, by email. Responding party evidently did not request or obtain an extension of time within which to respond. As of the filing of the motion on June 5, 2024, no responses had been served. [Kim Decl., paras. 2, 4, Ex. A].

Again, as noted above, the file includes responses to the Requests for Admissions, Set Four, which were dated July 9, 2024. [See Plaintiff Jean Kechichian’s Memorandum of Points and Authorities in Opposition to Defendant Linda K. Lee’s Motions to Compel Responses to Form Interrogatories, Set Three, Special Interrogatories, Set Three, Requests for Production, Set Three, and Requests for Admissions, Set Three, filed 7/16/2024, Mabee Decl., para. 16, Ex. 14]. This filing would have been after the motions to compel were filed on June 5, 2024, so it is possible that the motion haw since become moot.

Moreover, the responses to requests for admissions were not accompanied by a verification by defendant. [See Mabee Decl., Ex. 14]. [See Plaintiff Jean Kechichian’s Memorandum of Points and Authorities in Opposition to Defendant Linda K. Lee’s Motions to Compel Responses to Form Interrogatories, Set Three, Special Interrogatories, Set Three, Requests for Production, Set Three, and Requests for Admissions, Set Three, filed 7/16/2024, Mabee Decl., paras. 17-19, Exs. 15-17]. This would have been after the motions to compel were filed on June 5, 2024, so it is possible that the motions have since become moot.

Moreover, the responses were not accompanied by verifications by defendant. [See Mabee Decl., Exs. 15-16]. Under CCP section 2033.210(a) “[t]he party to whom requests for admission have been directed shall respond in writing under oath separately to each request.” See also CCP section 2033.240(a) (‘The party to whom the requests for admission are directed shall sign the response under oath, unless the response contains only objections.”)

Plaintiff has failed to serve timely responses, and the responses which appear in the file are include substantive responses, so are required to be verified. The responses accordingly are the equivalent of no response at all, as discussed above, and are also not in substantial compliance with CCP § 2033.220. Plaintiff accordingly has waived all objections. Defendant has filed a noticed motion requesting an order that the requests be deemed admitted as truth.

“It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admissions necessitated this motion.”

With respect to interrogatories, under CCP § 2030.290(c), “The court shall impose a monetary sanction… against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” A similar provision applies to document demands. See CCP § 2031.300(c).

CCP § 2023.010 provides that misuse of the discovery process includes, “(d) Failing to respond or to submit to an authorized method of discovery.” Where there has been such conduct, under CCP § 2023.030(a), “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct....If a monetary sanction is authorized” by the statute, “ the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that the other circumstances make the imposition of the sanction unjust.” CCP § 2023.030(a).

In this case, the motion to deem requests for admissions admitted will be granted, and under the statute, the imposition of monetary sanctions in mandatory. With respect to interrogatories and the document demand, responding party has failed to respond to authorized methods of discovery and propounding and moving party has submitted evidence that it has incurred expenses as a result of the conduct.

This request seems a bit high for motions of this nature, which are largely cut and pasted from each other, and from the motions which were the subject of the court’s July 26, 2024 order for which sanctions have already been awarded, so some adjustment will be made.

The sanctions sought include one hour at $395 per hour to attend the hearing, when all four motions will be heard together, along with the motion for terminating sanctions, for which this time is also requested. The sanctions are reduced accordingly as follows: 2.5 attorney hours at $395.00 per hour for a total of $987.50.

Monetary sanctions requested by moving party: Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $2,831.90 ( 7 hour @$395 per hour) [7 hours requested] plus $66.90 filing fee [Amount Requested $2,831.90], which sum is to be awarded in favor of defendant Linda K. Lee and against plaintiff Jean Kechichian, payable within 30 days. CCP sections 2030.290(c), 2031.300 (c), 2023.010(g), and 2023.030(a).

Monetary sanctions requested by moving party: Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $ 1382.50 ( 3.5 hours @ $395 per hour) [4.5 hours requested] plus $66.90 filing fee [Amount Requested $1,844.20], which sum is to be awarded in favor of defendant Linda K. Lee and against plaintiff Jean Kechichian, payable within 30 days. CCP sections 2030.290(c), 2023.010(d), and 2023.030(a). This amount includes one hour of attorney time to attend the hearing remotely.

Monetary sanctions requested by moving party: Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $987.50 (2.5 hours @ $395 per hour) [4.5 hours requested] plus $66.90 filing fee [Amount Requested $1,844.20], which sum is to be awarded in favor of defendant Linda K. Lee and against plaintiff Jean Kechichian, payable within 30 days. CCP sections 2030.290(c), 2023.010(d), and 2023.030(a).

Plaintiff Jean Kechichian is ordered to serve verified responses to Defendant Linda K. Lee’s Request for Production of Documents (Set Four) Propounded on Plaintiff Jean Kechichian, without objection, and to permit inspection and copying within 10 days.

Monetary sanctions requested by moving party: Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $987.50 (2.5 hours @ $395 per hour) [4.5 hours requested] plus $66.90 filing fee [Amount Requested $1,844.20], which sum is to be awarded in favor of defendant Linda K. Lee and against plaintiff Jean Kechichian, payable within 30 days. CCP §§ 2031.300(c), 2023.010(d), and 2023.030(a).

Plaintiff Jean Kechichian has failed to serve timely responses substantially complying with the provisions of CCP § 2033.220 prior to the hearing on this motion. The Court therefore orders that all matters specified in Defendant Linda K. Lee’s Requests for Admissions (Set Four) Propounded on Plaintiff Jean Kechichian are deemed admitted as true, pursuant to CCP § 2033.280(c).

Monetary sanctions requested by moving party: Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $ 987.50 ( 2.5 hours @ $395 per hour) [4.5 hours requested] plus $66.90 filing fee [Amount Requested $1,844.20], which sum is to be awarded in favor of defendant Linda K. Lee and against plaintiff Jean Kechichian, payable within 30 days. CCP §§ 2033.280(c), 2023.010(d), and 2023.030(a).

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